Conditions for the admissibility of an application for voluntary surrender

Description of the facts

S.J. He was accused of 2 acts, namely:

1. acting at short intervals through the electronic strategy and telecommunications network, by making contact with a insignificant under the age of 15, utilizing the net messaging device ‘Messenger’ and the text messages of the MMS, he directed pornographic content to it, i.e. a crime under Article 13(2) of the KK in conjunction with Article 200(3) of the KK and Article 200a(2) of the KK, in conjunction with Article 11(2) of the KK, in conjunction with Article 12(1) of the KK, in conjunction with Article 31(2) of the KK;
2. 20.3.2022 had pornographic content involving minors, in the form of graphic files and video files, i.e. for a crime under Article 202 §4a of the KK in conjunction with Article 31 §2 of the KK.

District Court of P. — having respect to the application made by the suspect under Article 387(1) of the NCP — by judgement of 20.1.2023, II K 308/22 declared the suspect S.J.. for the guilty of both acts and for each act, he sentenced him to 4 months in prison, and then joined him together with a full of six months in prison, the execution of which he suspended for a trial period of 2 years.

This decision was not contested by either organization and was finalized on 28.1.2023.

On 22.12.2023, the Court of Justice of the territory Court of P. brought an appeal against the decision in its entirety to the detriment of the S.J.

The complainant alleged a gross and material infringement of the criminal law provisions of procedural law, namely Article 387(1), (2) and (3) of the NCP.

In so doing, the applicant requested that the judgement under appeal be set aside in its entirety and that the case be referred to the territory Court of Pińczów for review.

The ultimate Court, after examining the cassation brought by the lawyer General to the detriment, annulled the contested judgement and referred the case to the territory Court of P. for re-examination.

Reasons for SN

According to the ultimate Court, the cassation of the lawyer General is, of course, justified, and, in accordance with the disposition of Article 535(5) of the NCPs, it was so essential to take account of the parties at the sitting.

The contested judgement was given in a consensus procedure, i.e. utilizing the institution referred to in Article 387(1) of the NCP, in connection with the defendant's right (whose offence is alleged to have been punishable by a punishment of not more than 15 years) to apply for a conviction and to impose a certain punishment or penalty, to forfeiture or compensatory measure, and to issue a circumstantial decision on the costs of the trial, without taking evidence.

In examining an application made pursuant to Article 387(1) of the NCP, the court must first of all verify the existence of all conditions for the admissibility of specified a request. 1 of them is to check its compliance with substantive criminal law provisions, including a legal and criminal evaluation of the act, as well as the degree of penalties or criminal measures. If the content of the proposal does not respect, it is simply a clear work of the court either to make its decision to take account of that request subject to a change affecting the perceived defect (Article 387(3) of the CRS), or to proceed to examine the case on a general basis (cf. ultimate Court judgement of 13.2.2019, V KK 34/18). The regional court in the present case has not carried out specified a review fully, since, unless the evidence gathered on the case raises doubts as to the validity of the legal qualification of the actions alleged by the accused person, the shortcomings of the application for a compulsory criminal measurement have already prevented the suspect from taking into account the proposal made by the defendant.

It was correct for the applicant to see that, at the disposal of Article 41(1a) of the second KK (as amended until 30.9.2023, after that date – Article 41(1)(2KK) the court of compulsory law prohibits the seizure of any or circumstantial positions, the performance of any or circumstantial professions or activities related to the upbringing, education, treatment or care of minors for a limited period of time or has been for life in the event of an offence against sexual freedom or morality to the detriment of a insignificant (as of 1.10.2023 besides in the event of a conviction of imprisonment for an intentional offence against life or wellness against a minor). Meanwhile, in this case, the first of the acts attributed to the accused S.J. – in the form of an inept effort – he fulfilled the marks of the offences referred to in Article 200(3) of the KK, Article 200a(2) of the KK, and the second 1 carried out the offence referred to in Article 202 of the KK. At the same time, it was found that the accused, by committing these behaviours, due to intellectual impairment, had a considerable limited capacity to direct his actions. The ultimate Court’s caselaw rightly approves the view that the offences against sexual liberty or morality to the detriment of a insignificant to which Article 41 § 1a of the second KK refers (as amended by 30.9.2023, after that date – Article 41 § 1a(2) KK) must be considered primarily those offences, which are included in Chapter XXV of the Criminal Code, entitled ‘Fences against sexual freedom and morality’ (see the ultimate Court judgement of 25.10.2023, IK 270/23, Legalis), and these are the acts accused of which S.J. has acted in the present case. In the context of the application of the criminal measurement in question, it should be noted that action to the detriment of the insignificant constitutes a characterisation of the perpetrator’s behaviour and not its effect. Therefore, the implementation of the mark ‘for injury’ is not dependent on the actual existence of injury. A circumstantial criminal measurement is intended to prevent the violation of goods in the form of the sexual freedom and morality of a minor, due to the tendency of the perpetrator to interfere in this peculiar sphere of goods protected by criminal law.

In view of the above, it should be concluded that with respect to the accused S.J. the conditions requiring the court to conclude the criminal proceedings referred to in the second conviction of Article 41(1a) of the KK (as amended until 30.9.2023) have been updated. The applicant besides correctly noted that the judgement of the criminal measurement in question was of a compulsory nature, regardless of whether the perpetrator of the offence against sexual freedom or morals committed to the detriment of the insignificant had previously held that position or pursued a profession of that kind, and the act in question remained in connection with the functional scope of his activities (this view was accepted as being correct, inter alia, in the ultimate Court judgments of 18.4.2023, V KK 70/23, Legalis; 22.6.2023, IV KK 44/23, Legalis).

The question referred to by the complainant of the incorrect provision of Article 14(1) of the CCC in the legal basis of the punishment for the act (assigned to the suspect in the form of a performance alternatively than an effort to carry out), as the author of the cassation himself stated, did not affect the content of the judgement under appeal.

In that situation, the judgement under appeal had to be repealed in its entirety and the case was referred to the territory Court of P. for re-examination. This court, acting correctly, should make it subject to the application made under Article 387(1) of the NCP on the grounds that the suspect will modify it in accordance with substantive law. Reaching agreement on this issue, while fulfilling the remaining grounds for voluntary surrender, will open the way to taking account of the defendant's request.

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